If you're considering doing a Will or Trust for yourself, or assisting another individual with their Estate Plan, it's important to know who can legally execute estate planning documents. The ability to make a will or trust may also come in to question if you have a parent or relative who is under a conservatorship. There are three categories of persons who are able to execute a valid, legal will, trust, power of attorney, or other estate planning document. They are:

A person over 18 who is of sound mind

A Conservator, if authorized by the court under CA Probate Code 2580

A Conservatee, if mentally competent, retains their rights to amend and revoke a will or trust made by a Conservator

Number 3 is typically not relevant, as the majority of conservatees are under conservatorship because they lack mental competence. An exception to this rule might be someone like Britney Spears, who though being conserved, may still have mental competence.

Assuming someone is over the age of 18, what determines if he or she is "of sound mind"?

The law spells out two standards of competence when it comes to estate planning documents. California Probate Code 6100.5 states that:

The individual does not have sufficient mental capacity to be able to

(A) understand the nature of the testamentary act

(B) understand and recollect the nature and situation of the individual’s property or

(C) remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will.

In other words, if someone cannot understand the purpose and function of a will, trust, or power of attorney, that person cannot legally execute estate planning documents.

Furthermore, if an individual cannot understand or recollect the details of the property contained in their estate, he/she cannot legally execute estate planning documents.

And finally, if one cannot remember and/or comprehend their relationship to those who will be affected by his or her estate plan (such as parents, children, spouse, etc), that person is not legally capable of executing estate planning documents.

The attorneys who provide their services to individuals executing estate planning documents (including amendments or codicils) also have a responsibility to ensure the individuals have mental capacity. Should attorneys execute documents for a person not of sound mind, they potentially open themselves up to malpractice suits.

The second standard of competence set forth by California Probate Code 6100.5 states:

The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual’s devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done.

Essentially, the second standard states that the individuals lacked mental competence at the time of execution (signing) if they were experiencing delusions or hallucinations at that time AND their choices were different from those they would have made, had it not been for the altered state of mind. This scenario is rare in probate law, and furthermore would be difficult to prove.

On the other hand, the first standard of competence set forth by California Probate Code comes up far too frequently in my practice as a probate attorney. In most scenarios an older individual, often prompted by a child or other caregiver, makes changes to their will, trust, or power of attorney at a time when his/her competence is in question. This could lead to a case of financial elder abuse, in which the child or caregiver is accused of exercising undue influence over the individual. An example of undue influence would be if a child who was caring for a parent (and thus was in a position of perceived or actual power) used their influence to persuade the parent to change the parent's trust, leaving everything to that child. Situations like this can turn in to protracted litigations in which the influencing party, if found guilty, can be completely cut out of any inheritance - at the very least.

In short, competence is key when it comes to Estate Planning Documents. Furthermore, proof of incompetence does not equal competence, particularly when it comes to the law.

For questions about estate planning, changes to your estate plan, or estate planning for conservatees, contact my Elder Law office in Walnut Creek at 925-322-1795 for your consultation.